FOREVER PROPERTY FINANCE COMPANY LTD v. BARRETTO, BERNICE MARY

HCA 2189/2015

[2023] HKCFI 2783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2189 OF 2015

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HCA 505/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 505 OF 2021

_________________

_________________

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DECISION

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1.  On 13 October 2023, this Court handed down a Judgment (“the Judgment”) in the two money lender actions herein, and ordered on a nisi basis that the defendant shall bear the plaintiff’s costs of the actions[1] to be taxed on solicitor and own client basis if not agreed (“the Order Nisi”).

2.  Pursuant to paragraph 42 of the Judgment, the defendant, by letter dated 18 October 2023 (“the Application Letter”), wrote to this Court and stated:

“1. I apply to omit costs order nisi Paragraph 42 in Judgment dated 13 October 2023 due to known mental and health deterioration with adjustment disorder, severe Impetigo complicated with Atopic dermatitis, Anaemia with immediate blood transfusions and coughing with medical proof dated 19 September 2023 and medical reasons since 2005.

2. I will take further actions to oppose and strike out the above inaccurate Judgment Paragraphs 1 to 43 as repeated in my 5^th letter dated 17 October 2023.”

3.  I take it that the defendant is applying by virtue of the Application Letter to vary the Order Nisi, such that there shall be no order as to the costs of the actions.

4.  As set out above, the reasons relied on by the defendant for the variation application are that she had certain medical conditions. 

5.  Even if the defendant is really suffering from the various medical problems as alleged, this would not amount to a valid ground in varying the Order Nisi in the circumstances where she had lost both actions.

6.  I therefore dismiss the defendant’s application.  The Order Nisi is hereby made absolute.

7.  Since the defendant’s application is totally without merits, in order to save time and costs, this Court did not invite the plaintiff to make submissions in response to the Application Letter. 

8.  Having taken into account the length of the Application Letter and the fact that it is apparent that the grounds relied on are totally unmeritorious, I hold the view that the costs of the plaintiff’s solicitors in the perusal of the said letter must be minimal.  I therefore make no order as to the costs of the defendant’s application.

HCA 2189/2015

[2023] HKCFI 2629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2189 OF 2015

________________________

HCA 505/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 505 OF 2021

________________________

________________________

________________________

J U D G M E N T

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INTRODUCTION

1.  This is the trial of two money lender actions. 

2.  In HCA 2189/2015 (“the 2015 Action”), the plaintiff, which is a licenced money lender under the Money Lenders Ordinance (Cap.163, Laws of Hong Kong), sues Madam Barretto, Bernice Mary (“the defendant”)  for the sum of $1,115,300.39 together with interest and for delivery of vacant possession of the property known as Flat B on 19^th Floor of Wah Koon Building, No.191 Hollywood Road, Hong Kong (“the Property”)  pursuant to, inter alia, two loan agreements dated 20 May 2013 and 10 December 2013 respectively and a legal charge dated 17 October 2012.

3.  In HCA 505/2021[1] (“the 2021 Action”), the plaintiff sues the defendant and her mother Madam Chan Hei Kwan Helena (“Helena”)  for the sum of $275,132.89 together with interest and for delivery of vacant possession of the Property pursuant to, inter alia, a loan agreement dated 17 June 2014 and a legal charge dated even date.

4.  By consent, judgment has been entered against Helena on 11 December 2020 in the 2021 Action.  As a result, only Madam Barretto remains a defendant in the 2021 Action.[2]

5.  By the order of Master Hui dated 18 November 2021, the 2015 Action and the 2021 Action have been ordered to be heard and tried at the same time before the same Judge or immediately one after the other as to be directed by the trial Judge. 

THE DEFENDANT’S ABSENCE

6.  The defendant did not appear on the first day of the trial.

7.  Be that as it may, I was satisfied that she was well aware of the date of the trial, as she had sent a letter to the Court dated 18 September 2023 and informed that she was not going to attend the trial by reason of various medical conditions.  In the same letter, she also asked the Court to “close” both cases, as they had been “solved out of court”. 

8.  However, the said letter was only supported by a medical report dated 4 August 2020 issued by Dr Henry Hui of the Department of Psychiatry of Pamela Youde Nethersole Eastern Hospital.  Even in such a medical report, Dr Hui stated that while the defendant was suspected to suffer from delusional disorder, her psychotic symptoms had subsided after medication had been prescribed.  Her mood was found to be euthymic.  Her sleep and appetite were normal.  No suicidal ideation was evident.  Neither could any psychotic features be elicited.

9.  In such circumstances, I considered it fair to proceed with the trial in the absence of the defendant.

10.  The trial was therefore proceeded with accordingly and the plaintiff’s evidence (given by Ms Ng Wai Nga)  was completed in the morning on 19 September 2023.  Direction was given for the plaintiff to lodge and serve written closing submissions.

11.  At around 2:40pm on the same day, this Court received a “certificate of sickness” dated even date from the defendant by fax.  The certificate was issued by a Dr Lai Wing Him. It was certified that the defendant was “unfit for work” and she was recommended 2 days of sick leave by reason of adjustment disorder.  However, the trial had been completed by then (subject to written closing submission which was due to be lodged by the plaintiff on 20 September 2023).

THE PLAINTIFF’S CASE

12.  The plaintiff’s case is straight-forward and will be set out below.

The 2015 Action

13.  The defendant had been borrowing money from the plaintiff since 17 October 2012.

14.  On 17 October 2012, the defendant entered into a legal charge (“the Second Legal Charge”)  with the plaintiff by mortgaging her ½ share of the Property to secure for any loan and facilities granted or to be granted by the plaintiff to the defendant from time to time and the payment of amount which may be due owing or incurred to the plaintiff by the defendant.

15.  By a loan agreement (“the 1^st Loan Agreement”)  and a memorandum both dated 20 May 2013 (collectively referred to as “the 1^st Agreement”)  entered into by the plaintiff as lender and the defendant as borrower, the plaintiff agreed to lend and the defendant agreed to borrow a sum of $680,000.

16.  The 1^st Loan Agreement provides, inter alia, that:-

(1)  Clauses 1 and 2: The loan amount of $680,000 was secured by the Second Legal Charge;

(2)  Clause 1.4: The defendant agreed to pay interest at the rate of 36% per annum (3% per month);

(3)  Clause 2.1: Interest shall be payable monthly in arrears on the 20^th day of each month and the redemption date shall be on or before 20 May 2014;

(4)  Clause 2.2: In the event the defendant defaulted in payment of any interest/installments on the due date, then the whole outstanding sum shall become immediately due;

(5)  Clause 3.2: The plaintiff is entitled to recover interest after judgment at the same interest rate of 36% per annum notwithstanding that there is a prescribed court judgment rate; and

(6)  Clause 4: The plaintiff is entitled to institute legal proceedings against the defendant to cover the outstanding principal and interest, and in such event, the plaintiff is entitled to recover the legal costs incurred on solicitor and client basis.

17.  The said loan amount of $680,000 was advanced by the plaintiff to the defendant accordingly on 20 May 2013.

18.  In the period between June 2013 and December 2014, the defendant had repaid the plaintiff a total sum of $279,320.

19.  By another loan agreement (“the 2^nd Loan Agreement”)  and another memorandum both dated 10 December 2013 (collectively referred to as “the 2^nd Agreement”)  entered into by the plaintiff as lender and the defendant as borrower, the plaintiff agreed to lend and the defendant agreed to borrow a sum of $100,000.

20.  The 2^nd Loan Agreement provides, inter alia, that:-

(1)  Clauses 1 and 2: The loan amount of $100,000 was secured by the Second Legal Charge;

(2)  Clause 1.4: The defendant agreed to pay interest at the rate of 42% per annum (3.5% per month);

(3)  Clause 2.1: Interest shall be payable monthly in arrears on the 10^th day of each month and the redemption date shall be on or before 10 December 2014;

(4)  Clause 2.2: In the event the defendant defaulted in payment of any interest/installments on the due date, then the whole outstanding sum shall become immediately due;

(5)  Clause 3.2: The plaintiff is entitled to recover interest after judgment at the same interest rate of 42% per annum notwithstanding that there is a prescribed court judgment rate;

(6)  Clause 4: The plaintiff is entitled to institute legal proceedings against the defendant to cover the outstanding principal and interest, and in such event, the plaintiff is entitled to recover the legal costs incurred on solicitor and client basis.

21.  The said loan amount of $100,000 was advanced by the plaintiff to the defendant on 10 December 2013.

22.  Only a total sum of $30,833 had been repaid by the defendant to the plaintiff in the form of periodic monthly instalments from December 2013 to December 2014.

The 2021 Action

23.  On 17 June 2014, the plaintiff, the defendant and Helena[3]entered into a loan agreement (“the 3^rd Loan Agreement”)  and a memorandum (collectively referred to as “the 3^rd Agreement”)  whereby the plaintiff agreed to lend and the defendant and Helena agreed to borrow a sum of $200,000.

24.  The 3^rd Loan Agreement provides, inter alia, that:-

(1)  Clauses 1 and 2: The loan amount of $200,000 was secured by the Third Legal Charge (see below);

(2)  Clause 1.4: The defendant and Helena agreed to pay interest at the rate of 42% per annum (3.5% per month);

(3)  Clause 2.1: Interest shall be payable monthly in arrears on the 17^th day of each month and the redemption date shall be on or before 17 June 2015;

(4)  Clause 2.2: In the event the defendant and Helena defaulted in payment of any interest/installments on the due date, then the whole outstanding sum shall become immediately due;

(5)  Clause 3.1: The defendant and Helena are liable to pay the plaintiff a further interest of the whole sum of the principal and interest from the date of default until the date of full payment thereof, and the payment of such additional interest shall not be reckoned and deemed as part payment of the principal sum and interest;

(6)  Clause 3.2: The plaintiff is entitled to recover interest after judgment at the same interest rate of 42% per annum notwithstanding that there is a prescribed court judgment rate; and

(7)  Clause 4: The plaintiff is entitled to institute legal proceedings against the defendant and Helena to cover the outstanding principal and interest, and in such event, the plaintiff is entitled to recover the legal costs incurred on solicitor and client basis.

25.  On the same day, the parties also entered into a legal charge (“the Third Legal Charge”)  whereby the Property was mortgaged to the plaintiff as security for any loan and facilities granted or to be granted by the plaintiff to the defendant and Helena from time to time and the payment of amount which may be due owing or incurred to the plaintiff by the defendant and Helena.

26.  The said loan amount of $200,000 was advanced by the plaintiff to the defendant and Helena on 17 June 2014.

27.  In the period between June 2014 and December 2014, the defendant and Helena had only repaid the plaintiff a total sum of $30,500.

28.  As aforesaid, by consent, judgment has been entered against Helena on 11 December 2020.

29.  On 18 December 2020, Helena paid the plaintiff a sum of $716,535.62. 

30.  However, interest on overdue interest under the 3^rd Agreement was still left unpaid.

31.  Pursuant to the 3^rd Agreement and the Third Legal Charge, the defendant is still liable for the outstanding amount payable under the 3^rd Agreement.

THE DEFENDANT’S CASE

32.  The defendant had filed nearly identical Defence and Counterclaim in both the 2015 Action and the 2021 Action. 

33.  The Counterclaims made by the defendant in the actions had been discontinued (in the 2015 Action)  and struck out (in the 2021 Action), as the case may be.

34.  The defendant’s pleaded defence may be summarised as follows:

(1)  She had made full repayment to the plaintiff;

(2)  The Plaintiff had charged extortionate charges and interest against her;

(3)  The plaintiff has not provided her with “charges and interest substantiations”;

(4)  The plaintiff’s staff member, Ms Kathy Chan, has caused her “excess nuisances”.

DISCUSSION

35.  As aforesaid, the defendant did not attend the trial to give evidence.  Consequently, her various witness statements are not admissible.  Hence, there is no evidence in support of any of the defences raised in her Defence filed in the actions.

36.  In relation to her lines of defence raised:

(1)  Despite her allegation that she had fully repaid the loans, she had not produced any evidence in support at all.  To the contrary, while she pleaded that she had already made full payment on 16 January 2015, it can be seen from her various emails sent after that date that she was still arguing that she “will” only pay the principal but not any interest. Further, in a letter issued by the defendant’s former solicitors dated 6 February 2015, it was alleged that the outstanding amount should be $980,000. It was not alleged therein that the defendant had made any payment at all.  In other words, the pleaded defence is contradicted by her own contemporaneous documents. This defence is therefore rejected.

(2)  The respective rates of interest as stipulated under the 1^st Agreement, the 2^nd Agreement and the 3^rd Agreement are all below 48% per annum[4].  There is no allegation that the plaintiff has charged any further fees which should be taken into account when the effective rate of interest is calculated.  This defence is therefore rejected.

(3)  The complaint that the plaintiff has not provided her with “charges and interest substantiations” is contradicted by the plaintiff’s letter to the defendant dated 12 March 2015 in which the calculation of the amount due under the 1^st Agreement, the 2^nd Agreement and the 3^rd Agreement had been clearly set out in an attachment.  This defence is therefore unmeritorious.

(4)  The allegation that Ms Kathy Chan has caused the defendant “excess nuisances” has not been established as a matter of fact, and in any event that does not amount to a defence in law.

37.  On the other hand, I accept the evidence of the plaintiff’s witness, Ms Ng Wai Nga, which is unchallenged in court, and am satisfied that the plaintiff has proved its case in both actions against the defendant.

38.  For the avoidance of any doubt, I should make it clear that I have also considered the defendant’s letter dated 21 September 2023 in which she “opposed”/“denied” the plaintiff’s closing submissions.  With respect, the said letter cannot assist her at all in her defence herein.  In particular, her reliance on a decision of Deputy District Judge Winnie Tsui (as she then was)  dated 10 June 2016 is totally misconceived, as the learned Judge only refused to strike out the defendant’s Defence on that occasion[5].   It has not dealt with the plaintiff’s closing submissions herein at all as alleged.

CONCLUSION

39.  I therefore give judgment in favour of the plaintiff against the defendant in both actions.

HCA 2189/2015

40.  I make the following orders in HCA 2189/2015:

(1)  The defendant do pay the plaintiff $2,932,515.58 with interest on $680,000 at the rate of 3% per month from 20 September 2023 until payment;

(2)  The defendant do pay the plaintiff $477,127.33 with interest on $99,282.07 at the rate of 3.5% per month from 20 September 2023 until payment;

(3)  The defendant do deliver to the plaintiff vacant possession of the Property known as Flat B on 19^th Floor of Wah Koon Building, No.191 Hollywood Road, Hong Kong.

41.  I make the following orders in HCA505/2021:

(1)  The 2^nd named defendant do pay the plaintiff $196,059.60 being interest on overdue interest in respect of the loan advanced under the 3^rd Agreement calculated up to 19 September 2023 with interest thereon at the rate of 3.5% per month from 20 September 2023 until payment;

(2)  The 2^nd named defendant do deliver to the plaintiff vacant possession of the Property known as Flat B on 19^th Floor of Wah Koon Building, No.191 Hollywood Road, Hong Kong.

COSTS

42.  I make a costs order nisi that the defendant shall bear the plaintiff’s costs of the action, to be taxed on solicitor and own client basis[6]if not agreed. 

43.  The above order nisi shall become absolute in the absence of application to vary (which, if any, shall be made by letter, and will be disposed of on paper)  within 14 days hereof.

Mr Kenneth Y. F. Wong, instructed by Li Kwok & Law, for the plaintiff

The defendant was not represented and did not appear

HCA 2189/2015

[2024] HKCFI 685

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2189 OF 2015

_________________

_________________

HCA 505/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 505 OF 2021

_________________

_________________

_________________

DECISION

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INTRODUCTION

1.  On 13 October 2023, this Court handed down a Judgment (“the Judgment”)[1] in the two money lender actions herein, and made the following orders:

HCA 2189/2015

(1)  The defendant do pay the plaintiff $2,932,515.58 with interest on $680,000 at the rate of 3% per month from 20 September 2023 until payment;

(2)  The defendant do pay the plaintiff $477,127.33 with interest on $99,282.07 at the rate of 3.5% per month from 20 September 2023 until payment;

(3)  The defendant do deliver to the plaintiff vacant possession of the Property known as Flat B on 19^th Floor of Wah Koon Building, No.191 Hollywood Road, Hong Kong.

HCA505/2021

(1)  The 2^nd named defendant do pay the plaintiff $196,059.60 being interest on overdue interest in respect of the loan advanced under the 3^rd Agreement calculated up to 19 September 2023 with interest thereon at the rate of 3.5% per month from 20 September 2023 until payment;

(2)  The 2^nd named defendant do deliver to the plaintiff vacant possession of the Property known as Flat B on 19^th Floor of Wah Koon Building, No.191 Hollywood Road, Hong Kong.

2.  By summons filed on 9 November 2023 (“the November Summons”), the defendant (Barretto Bernice Mary) applied to:

(1)  strike out or set aside the inaccurate judgment; and

(2)  stay the execution of the Judgment.

3.  Her grounds in support of the above applications, insofar as they are comprehensible, may be summarised as follows:

(1)  The “inaccurate Judgment” will damage her creditworthiness which is crucial;

(2)  She has suffered from adjustment disorder which was resulted from being exploited since 17 October 2012;

(3)  The submissions made by the plaintiff were the same as those made in two hearings in DCCJ 4339/2015 (case number of the 2021 Action while it was still pending in the District Court) (“the DC Action”);

(4)  The trial herein was conducted:

(a)  not on the basis of the defendant’s clarifications made in the hearings on 9 May 2016 and 10 June 2016 in the DC Action.  Further, the audio recordings of in the DC Action had not been considered by this Court;

(b)  in the defendant’s absence;

(c)  on the basis of the plaintiff’s “partial extractions of documents”;

(5)  She had made full repayments including excess interest and charges payments;

(6)  Contrary to [4] of the Judgment, Helena (i.e. the co-defendant) in fact had not admitted liability;

(7)  She was absent from the trial because Dr Lai Wing Him’s clinic and other clinics would not adjust their opening hours specifically for the sake of this trial, and her psychiatrist appointment was 9:30am on 19 September 2023 (i.e. the first day of the trial).

4.  While the defendant has referred to some other matters in her affirmation in support, those matters are not referred to herein as they are incomprehensible.

5.  On 26 January 2024, the defendant has taken out another summons in HCA 505/2021 (“the January Summons”), seeking to strike out/set aside the Judgment and to stay the execution of the same.  Since the defendant has asked for the same relief, this Court ordered (with the defendant’s consent) on 28 February 2024 that the January Summons shall be disposed of together with the November Summons.

DISCUSSION

Striking out/Setting aside the Judgment

6.  In the circumstances where a Judgment is given in the absence of a party, the Court has discretionary power to set aside such a Judgment.  Order 35 rule 2 of the Rules of the High Court provides that:

(1)  Any judgment, order or verdict obtained where one party does not appear at the trial may be set aside by the Court, on the application of that party, on such terms as it thinks just.

(2)  An application under this rule must be made within 7 days after the trial.

7.  The Judgment was handed down on 13 October 2023.  Hence, by the time when the Summons was filed on 9 November 2023, the time for the defendant to make such an application has already expired by slightly more than 2 weeks.

8.  The defendant has failed to explain why she did not make the application earlier.  Indeed, on 18 October 2023 (i.e. when it was still within time), she had applied to this Court by letter to vary the costs order nisi made in the Judgment.  In that application letter, she stated that:

“I will take further actions to oppose and strike out the above inaccurate Judgment Paragraphs 1 to 43 as repeated in my 5^th letter dated 17 October 2023.”

9.  It is unclear why she did not make such an application there and then.  However, what is clear is that she was able to make an application to the Court shortly after the handing down of the Judgment.

10.  In such circumstances, there is simply no basis upon which the Court may exercise its discretion in extending the time for her to make the present application, and therefore her application to set aside may be dismissed on this ground alone.

11.  Having said that, out of abundance of caution, I will consider the merit of her application.

12.  In Lau Kam Chuen v Lee Ching [2003] 2 HKLRD 1018 at [11], the Court of Appeal followed the approach adopted by the English Court of Appeal in Shocked v Goldschmidt [1998] 1 All ER 372 in which the following list of “general indications” of when the power to set aside will be exercised has been set out as follows:

“These authorities about setting aside judgment after a trial indicate that each case depends on its own facts and that the weight to be accorded to the relevant factors will alter accordingly. But from them I derive the following propositions or ‘general indications’ as Lord Wright might have called them. (1) Where a party with notice of proceedings has disregarded the opportunity of appearing at and participating in the trial, he will normally be bound by the decision. (2) Where judgment has been given after a trial it is the explanation for the absence of the absent party that is most important: unless the absence was not deliberate but was due to accident or mistake, the court will be unlikely to allow a rehearing. (3) Where the setting aside of judgment would entail a complete retrial on matters of fact which have already been investigated by the court the application will not be granted unless there are very strong reasons for doing so. (4) The court will not consider setting aside judgment regularly obtained unless the party applying enjoys real prospects of success. (5) Delay in applying to set aside is relevant, particularly if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it. (6) In considering justice between parties, the conduct of the person applying to set aside the judgment has to be considered: where he has failed to comply with orders of the court, the court will be less ready to exercise its discretion in his favour. (7) A material consideration is whether the successful party would be prejudiced by the judgment being set aside, especially if he cannot be protected against the financial consequences. (8) There is a public interest in there being an end to litigation and in not having the time of the court occupied by two trials, particularly if neither is short.”[2]

13.  I will consider the above factors which are relevant herein in turn below.

Notice of the proceedings

14.  The first general indication reads: “Where a party with notice of proceedings has disregarded the opportunity of appearing at and participating in the trial, she will normally be bound by the decision”.

15.  In the present case, there is no doubt that the defendant had received the notice of hearing, and that she was well aware that the trial would commence on 19 September 2023. As explained in [7] of the Judgment, she had informed the Court on the day before the trial that she would not attend.

Explanation of absence

16.  Where judgment has been given after a trial, it is the explanation for the absence of the absent party that is the most important.

17.  I have explained in [7] – [8] of the Judgment that the defendant did inform the Court on the day before the trial that she would not attend the hearing.  However, this Court took the view (and I maintain that view) that the trial should proceed in her absence.

18.  In fact, this was not the first time that she was absent from court hearings.  She did not attend the pre-trial review on 27 June 2023.  Neither did she attend the Case Management Conference on 17 January 2023 before Master Hui, nor the Case Management Summons hearing on 13 September 2022, and various hearings before Master on 14 July 2022, 23 June 2022, 7 June 2022, 18 November 2021, 12 October 2021, 8 July 2021, and 21 April 2021.  In short, she had failed to attend any court hearings of these cases for more than 2½ years.

19.  Although the defendant did present the Court with a sick leave certificate on many of those occasions, those certificates show that the defendant was only suffering from impetigo and dermatitis, and that she usually obtained the sick leave certificates on the day of the hearing or on the day before.  Normally only 3 to 4 days’ sick leave were granted by virtue of those certificates.

20.  Having taken all the circumstances into account, I am of the view that:

(1)  Although sick leave certificates had been granted by various doctors, I do not accept that the defendant’s condition was so bad that she could not attend the hearings;

(2)  The persistent absence from hearings prior to the trial sheds light on the real reason why the defendant did not attend the trial.  In my view, she simply did not want to face the legal consequence of not repaying the debts;

(3)  The medical evidence which the defendant produced on the day before the trial was even weaker.  Her absence from the trial was totally unjustified;

(4)  The defendant has now produced a medical certificate which states that she is suffering from adjustment disorder and was unfit to work on 19 September 2023 (for 2 days).  That is inadequate to prove that she was not even fit to attend court hearings.

21.  Hence, I do not accept the defendant’s explanation of absence.  I am of the view that the defendant has consciously made the decision not to attend the trial.

Prospects of success

22.  The court will not consider setting aside judgment regularly obtained unless the party applying enjoys real prospects of success.

23.  I have referred to the defendant’s case in the Judgment.  It suffices for me to say that she has no defence to the plaintiff’s claim, not to mention real prospects of success.

Delay

24.  Delay in applying to set aside is a relevant matter to take into account, though I should add that I would not attach much weight on this factor since the delay on the part of the defendant in taking out this application is not substantial (putting aside the question of extension of time at the moment as discussed in [6] – [10] above).

Public interest

25.  There is a public interest in there being an end to litigation.  The Court should not allow the setting aside of Judgment lightly.

Conclusion

26.  To conclude, I am of the view that the Court should not exercise its discretion in setting aside the Judgment.

27.  For the avoidance of doubt, I make it clear that I have considered the grounds relied on the defendant as summarised in [3] above.  However, I do not think they can assist the defendant.

Stay of execution

28.  The legal principles governing stay of execution are trite.  In Star Play Development Limited v Bess Fashion Management Co. Ltd. [2007] 5 HKC 84, it was held by Ma J (as his Lordship then was) that the existence of an arguable appeal (that is, one with reasonable prospect of success) is the minimum requirement before a court would even consider granting a stay. However exceptional the circumstances may be otherwise justifying a stay of execution, if there exist no arguable grounds of appeal, no stay will be granted.

29.  In the event the court is satisfied that there is a strong likelihood that the appeal would succeed, that in itself would enable a stay to be granted because this would constitute a good reason for a stay.

30.  If there is just an arguable appeal instead of a strong one, the appellant has to provide additional reasons as to why a stay is justified.  The demonstration of an appeal being rendered nugatory in the absence of a stay is a common example.

31.  As explained above, I am of the view that the defendant has no defence to the plaintiff’s claim. 

32.  Although she has filed a Notice of Appeal under CACV 355/2023 to appeal against the Judgment, the grounds of appeal included therein are nearly identical to the matters referred to in her grounds in support of the setting aside application herein.  In my view, they are simply not arguable. 

33.  I therefore do not agree that the execution of the Judgment should be stayed.

ORDER

34.  By reasons of the aforesaid, the November Summons and the January Summons are dismissed.

COST

35.  Costs should follow the event. 

36.  I therefore order the defendant to bear the plaintiff’s costs of the November Summons and of the January Summons (including all costs reserved), to be taxed if not agreed.